Appeal No. 1997-3282
Application No. 08/189,314
ethylene-alpha olefin copolymers having a density of 0.80 to
0.90 g/cm are taught by Shibano, there is no express or3
inherent teaching in Shibano of polymers having any particular
CDBI and specifically a CDBI of greater than about 70 percent.
Moreover, we find the examiner's position that "the claimed
invention would have been obvious over the prior art of record
[since applicant has failed to provide any evidence that
Shibano could not have used a metallocene catalyst]" (final,
page 3) untenable.
As stated above, the initial burden is on the examiner to
present a prima facie case of obviousness when making a 35
U.S.C. § 103(a) rejection. Only, if that burden is met, does
the burden of going forward then shift to the applicant to
overcome the prima facie case with argument and/or evidence.
We find nothing in Shibano that teaches, expressly or under
the principles of inherency, a polyolefin polymer having a
CDBI of greater than about 70 percent. The examiner has made
no showing that polyolefinic elastomers used in Shibano must
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